Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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A lawyer wishes to employ a "medical liaison" to give a presentation to a group of physicians. The presentation will contain a promotional message describing the lawyer and her practice. What are the lawyer's ethical responsibilities with respect to the medical liaison's presentation?
The liaison's presentation will constitute a "communication" subject to scrutiny under rule 1-400 of the California Rules of Professional Conduct because it contains a promotional message. The lawyer, therefore, may be subject to discipline if the liaison's presentation contains any untrue statement or otherwise contravenes rule 1-400(D), and shall be presumed to violate rule 1- 400 if the presentation does not meet the standards adopted by the Board of Governors of the State Bar under rule 1-400(E). Furthermore, the lawyer may not allow the liaison to represent, either expressly or implicitly, that the physicians will receive any fee, referral or other consideration of any kind in exchange for recommending patients to the lawyer. (Rule 1-320(B).) Where the physician acts as an agent of the lawyer in soliciting a client, rule 1-400(C) prohibits the communication as an impermissible solicitation.
Rules 1-320 and 1-400 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6152.
The ethical responsibilities arising from a lawyer's use of a "medical liaison" to give a presentation containing a promotional message to a group of physicians who, in turn, eventually might recommend patients to the lawyer depends upon an analysis of each segment of the communication chain. There are three segments: (1) lawyer's contact with the medical liaison; (2) medical liaison's contact with the physicians; and (3) physician's contact with patients/potential clients. As discussed below, we find that all three segments of the chain are "communications" within the meaning of California Rule of Professional Conduct 1-400(A)1 and that the third segment (physician's contact with patients/potential clients) is also a solicitation as defined by rule 1-400(B). Although the third segment is a solicitation, it is not prohibited by rule 1- 400(C) unless the physician is the agent of the lawyer.
Rule 1-400(A) defines a "communication" as "any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client . . . ." Rule 1-400(B), in part, provides:
(B) For purposes of this rule, a "solicitation" means any communication:
(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and
(2) Which is;
(a) delivered in person or by telephone . . . .
The first segment, lawyer's contact with medical liaison, is a communication because it is a message made by the lawyer concerning the availability for professional employment "directed to" prospective clients. It is clear that a communication can be found when a message is merely "directed to" potential clients regardless of whether such message is ever actually received by any potential client. Electronic media advertising is an example of such messages. Here, the lawyer's obvious objective in employing the medical liaison is to receive client inquiries following an anticipated eventual transmission of the message by the physicians to patients. Thus, the message is a communication.
The second segment, medical liaison's contact with the physicians, is similarly a communication "directed to" potential clients. It differs only in that it is made "on behalf of" the lawyer rather than personally by the lawyer.
Although these first two segments are communications and are clearly designed to result in employment for pecuniary gain, they are not solicitations because there is no "in-person" (or "telephone") delivery to the potential clients. In this regard, the first two segments are significantly different from the third segment.
The third segment, physician's contact with patients/potential clients, is both a communication and a solicitation. Like the first and second segment, it is a message concerning availability of employment originating with the lawyer which is "directed to" potential clients (the patients). Since the medical liaison's presentation (the second segment) included a promotional message, it would be difficult for the lawyer to reasonably argue that this final segment of the chain was never contemplated and that it should not be characterized as a communication. The third segment is also a solicitation as defined in rule 1-400(B) because the message ("directed to" potential clients) is, moreover, delivered in-person. Although the third segment fits the general definition of solicitation, it is not necessarily a solicitation prohibited by rule 1-400(C).
Rule 1-400(C), in part, provides that "[a] solicitation shall not be made by or on behalf of a member or law firm to a prospective client . . . ." (Rule 1-400(C), emphasis added.) Unlike the communication definition (rule 1-400(A)) and solicitation definition (rule 1-400(B)), the language used in the solicitation prohibition (rule 1-400(C)) does not reach messages "directed to" a prospective client. Rather, a prohibited solicitation actually must be made by or "on behalf of" the lawyer "to" the prospective client. The test for determining that a message "to" a prospective client is made "on behalf of" a lawyer is whether the physician is acting as the lawyer's agent,2 including but not limited to those situations where the physician receives compensation (or any other quid pro quo) from the lawyer or the intermediary. This critical factual issue must be analyzed on a case by case basis.3
As each segment of the chain is, at least, a "communication" conveyed by or on behalf of the lawyer, it must conform to rule 1- 400(D). Thus, the "communication" cannot contain any untrue statement, nor may it either omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not misleading or be presented in a manner that is false, deceptive or which tends to confuse, deceive or mislead. (Rule 1-400(D).)
The lawyer will be presumed to have violated rule 1-400 if the liaison's promotional message fails to meet the standards adopted by the Board of Governors pursuant to rule 1-400(E). For example, a presumptive violation of rule 1-400 occurs if the promotional message contains guarantees or predictions regarding the prospects for success enjoyed by clients of the firm (rule 1-400(E), std. 1), if it states or implies "no fee without recovery" without also expressly disclosing whether or not the client will be liable for costs (rule 1-400(E), std. 14), or if it states or implies that a member of the firm is able to provide legal services in a language other than English unless the member can actually provide legal services in such language. (Rule 1-400(E), std. 15.)4
Furthermore, the lawyer does not violate Business and Professions Code section 6152, subdivision (b), by merely hiring the medical liaison to give an otherwise permissible presentation.5 (See also rule 3-210 which prohibits a member from advising the violation of any law.)6
Of course, the lawyer may not allow the medical liaison to offer, expressly or implicitly, any direct or indirect form of benefit to the physicians for recommending the lawyer to the physicians' patients. The promise of any form of compensation or other consideration accruing to the physician for making a recommendation would violate rule 1-320(B) (Financial Arrangements with Non- Lawyers).7
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
(B) A member shall not compensate, give, or promise anything of value to any person or entity for the purpose of recommending or securing employment of the member or the member's law firm by a client, or as a reward for having made a recommendation resulting in employment of the member or the member's law firm by a client . . . .
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